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Migdalia Serrano v. Carlos A. Rotman

February 4, 2011


Appeal from the Circuit Court of Cook County. No. 05 L 11063 Honorable John B. Grogan, Judge Presiding

The opinion of the court was delivered by: Justice Fitzgerald Smith

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

Justices Howse and Epstein*fn1 concurred in the judgment and opinion.


This medical malpractice claim arose following complications from reverse tubal ligation surgery. Migdalia Serrano (plaintiff) alleged that Dr. Carlos Rotman was negligent in his care and treatment, and that such negligence was a proximate cause of her injury. A jury found in favor of Dr. Rotman. Plaintiff now appeals, alleging that (1) the trial court's ruling in regard to Dr. Rotman's Illinois Supreme Court Rule 216 (Ill. S. Ct. R. 216 (eff. Aug. 1, 1985) (hereinafter Rule 216)) answer to plaintiff's requests to admit was improper, (2) the trial court's denial of plaintiff's motion for judgment notwithstanding the verdict was improper, (3) the trial court's refusal to submit Illinois Pattern Jury Instructions, Civil, No. 10.01 (2006) was an abuse of discretion, and (4) the trial court's rulings as to the admissions of evidence were improper. For the following reasons, we affirm.


In 1984, plaintiff had a tubal ligation. On March 26, 1996, plaintiff visited Dr. Rotman's office, where she expressed a desire to reverse the tubal ligation. She was provided with medical history forms to complete. Plaintiff answered "no" to having any "bleeding tendencies." She completed the section regarding her children and did not indicate that her son was a hemophiliac. Plaintiff left the section titled "any other information you would like us to know," blank.

Dr. Rotman then performed an ultrasound on plaintiff and noted that everything was normal. Plaintiff chose not to undergo the reversal surgery at that time because of finances.

On January 13, 1998, plaintiff returned to Dr. Rotman's office and completed a new patient registration form. She met with certified medical assistant (CMA) Sandra Gutierraz. Gutierraz testified that had plaintiff advised her of any changes or any additional medical history from her prior visit, or that she was a hemophilia carrier, Gutierraz would have documented and flagged such information.

Dr. Rotman examined plaintiff. Plaintiff indicated that she was experiencing pelvic pain. Dr. Rotman discovered that plaintiff had developed endometriosis and indicated that he could treat that at the same time as her reverse tubal ligation surgery. Plaintiff's surgery was schedule for March 18, 1998.

Plaintiff testified that she returned to Rotman's office prior to surgery to make payments and to have blood drawn for "pre-op" tests including a blood-clotting time test. Plaintiff testified that she told Gutierraz during one of her visits that she had spoken with her son's hematologist about the surgery and that a shipment of Factor IX was being delivered to her home. Subsequently, she called Gutierraz and told her that she needed the Factor IX injected one hour before and one hour after surgery. Plaintiff testified that the day before surgery, Gutierraz called and told her to bring the Factor IX to the surgery.

On March 18, 1998, plaintiff took a limousine to the Surgical Center. Plaintiff's daughter, Celeste, testified that she saw her mother leave the house that morning with nine boxes of Factor IX packed in a large see-through bag.

At the Surgical Center, a nurse completed a "preoperative checklist" on plaintiff. No medications were labeled or indicated in plaintiff's admitting form, but CMA Gutierraz testified that had plaintiff brought medication in, it would have been labeled.

Prior to surgery, plaintiff met with the anesthesiologist, Dr. Jay Kiokemeister. Plaintiff testified that the bag containing Factor IX was placed on a table next to her. Plaintiff further testified that she told Dr. Kiokemeister that she needed the Factor IX one hour before surgery and one hour after surgery because she was a hemophiliac carrier. Dr. Kiokemeister noted on his pre-anesthesia form that "patient has [a] son with history of Factor IX deficiency. Has brought Factor IX in case of urgent matters." Dr. Kiokemeister stated in his deposition that he understood this to mean that the condition was unique to her son, and not applicable to plaintiff. Dr. Kiokemeister further noted that plaintiff's clotting times were within normal range.

According to Dr. Rotman, Dr. Kiokemeister never advised him about plaintiff's Factor IX medication, and Dr. Rotman never saw Factor IX in the operating room.

Dr. Nasiruddin Rana assisted Dr. Rotman with plaintiff's surgery. Dr. Rana testified at trial that he had no knowledge of plaintiff's hemophilia/Factor IX condition and did not recall seeing Factor IX in the operating room.

The surgery was completed at 12:15 p.m., and anesthesia was completed at 1 p.m. Plaintiff did not have any complications during the surgery and was discharged from the recovery room at 5:20 p.m. Plaintiff testified that Dr. Rotman saw her in recovery and told her the surgery went well and that it was not necessary to use her medication. Plaintiff further testified that the bag of Factor IX was returned to a family member in the waiting area of the Surgical Center.

On March 23, 1998, plaintiff arrived at Dr. Rotman's for a postoperative examination. Gutierraz removed her stitches. On March 28, 1998, plaintiff called Dr. Rotman's office and complained of "oozing" and pain. Dr. Rotman was out of town, but CMA Gutierraz had plaintiff come in to the office. Gutierraz cleaned the wound and prescribed antibiotics and Vicodin. Plaintiff testified that Gutierraz advised her to see the doctor in Oakbrook if she got worse and to return to Dr. Rotman's on Monday. Gutierraz, on the other hand, testified that she told plaintiff to see Dr. Rana in Oakbrook, but that plaintiff wanted to try the prescriptions first, and that plaintiff would call if her condition changed.

Later that day, plaintiff went to the emergency room for a hematoma and was then admitted to the hospital where she received intravenous antibiotics. Gutierraz called Dr. Rana to notify him of plaintiff's emergency room visit and admission to the hospital. Dr. Rana called the Plaintiff's initial complaint, which was filed on March 15, 2000, claimed that she has not worked since March of 1998, and that she is only able to stand, walk, or sit with her leg down for short time periods without pain and swelling. She named as defendants Dr. Rotman, Dr. Kiokemeister, MacNeal Hospital, Oakbrook Surgical Center, Dr. Brian Ralston, Dr. Rana, Dr. Jose Rodriguez, and Dr. Lawrence Schilder. On December 1, 2000, the court dismissed Oakbrook Surgical Center as a defendant. Thereafter, both Dr. Rana's and Dr. Kiokemeister's motions to dismiss were granted. Plaintiff then voluntarily dismissed the remainder of her case.

On October 11, 2005, plaintiff refiled her cause of action sounding in negligence against MacNeal Hospital and Dr. Rotman. Plaintiff settled with the hospital. Plaintiff alleged that Dr. Rotman was negligent in her care and treatment, and that he deviated from the standard of care in obtaining her medical history and failing to administer Factor IX before or after her surgery. The jury returned a general verdict in favor of Dr. Rotman, and plaintiff now appeals.


A. Rule 216 Admission

The following appeared in Dr. Rotman's response to plaintiff's Rule 216 requests for admission, which was signed by his attorney:

"Request: You elected not to infuse [plaintiff] with Factor IX Concentrate prior to, during or following surgery.

Response: Admitted."

During cross-examination of Dr. Rotman, plaintiff's counsel moved to read into evidence Dr. Rotman's answer to plaintiff's request to admit and asked the trial court to instruct the jury that such admission was a judicial admission. Plaintiff's counsel argued that such admission "clearly implies that he made a conscious decision" not to administer Factor IX. Defense counsel countered that it was only a judicial admission as to his election not to administer Factor IX, not as to his knowledge that plaintiff had a Factor IX deficiency. The trial court stated that " [w]hat [Dr. Rotman] can say is the reason I didn't elect to infuse her is I didn't know anything about it or whatever medical reason he has, but *** it is an admitted fact that he elected not to infuse her." The trial court went on to say that "the doctor may say that I didn't know anything about it, so *** I did not elect to infuse for whatever reason." Dr. Rotman's response to plaintiff's request to admit was then published to the jury.

During cross-examination, Dr. Rotman testified that he never learned that plaintiff's Factor IX was available at the surgical center. Plaintiff's counsel requested that the trial court "formally instruct the jury that the matter admitted in the request to admit is a judicial and binding admission and cannot be contested in this trial." The trial court stated, "It's an admission of fact," and that the debate was not whether Dr. Rotman elected to give the Factor IX, because that was an admission of fact, but rather what his reason was for not electing to administer Factor IX. The trial court specifically ...

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